I want to welcome Justice Major. It's a pleasure to have you with us, Justice.

You mentioned the prospective constitutional hurdle of cruel and unusual punishment, though it might be safe under section 1. Now, if this were a government bill, it would be subject to the requirement of vetting under section 4 of the Department of Justice Act, whereby the Minister of Justice would have to undertake to show that such legislation is not inconsistent with the Charter of Rights and Freedoms. But as this is a private member's bill, it's not subject to that kind of vetting.

We are witnessing an increasing pattern of private members' bills being taken over by the government—becoming government bills, but without the obligation in cases of prospectively suspect provisions of the responsibility for vetting those provisions.

Well, Mr. Cotler, let me ask you, because I don't know the answer to this. What about the provisions of section 33? Let us suppose the minimum sentence was found to be unconstitutional. Couldn't the overriding provisions apply and the government pass it in any event?

I agree with you that it's unlikely to be used in this circumstance, but it's there. Depending on the determination of the government in power at any one time, who knows whether they'd be so intent that they'd to go to section 33. Frankly, I doubt it, but nonetheless it's there.

Leaving aside the constitutional issues for the moment, there is a policy concern. In the matter of mandatory minimums, you remove discretion from the judges and transfer it to the police or the crown. When you transfer it from judicial discretion in open court with the possibility of appeal to a more private type of plea bargaining and the like, you can have one of two outcomes.

You can have an outcome whereby the accused pleads to a lesser charge, so the objective of denunciation, which was held to be the principal purpose of the bill, gets diminished or lost. Or there's the alternative, where the accused goes to trial and thereby the courts become clogged up because of these mandatory minimums.

It seems to me that there are some policy concerns here that we ought to consider as well.

You can draw from the California experience where they have the three strikes and you're out. I don't know whether you could call it evidence, but there is a growing belief that when facing an accused charged with stealing a piece of pizza off a plate—it's his third offence and the judge knows if he convicts he's going to jail for life—the judge finds some way of seeing a reasonable doubt. Or if the judge doesn't agree with the mandatory sentence, he can rationalize, perhaps on the evidence, a little more favourably to the accused to find some way, procedural or something else, not to find him guilty.

That's another hurdle. Not all judges will see the evidence the same way. I think they're human and mindful of a minimum sentence, and they don't believe the minimum sentence should apply. The next thing you know you might have an acquittal, which is one other consideration along with the ones you mentioned about laying the charge in the first place or pleading guilty to a lesser charge.

I'm Brian Jean, from Fort McMurray, Alberta, where I practised criminal law and divorce law for many years.

Looking at statistics, I note that in 1985, for instance, there were somewhere around 1,327 reported kidnappings, of which 21% had charges laid. There were 168 males, 80 females, and 9 juveniles that were ultimately charged. There was about a 21% charge rate, which in my mind means that 79% of people are getting away with it.

During the time I practised divorce law, I recognized of course that the Divorce Act has children as a primary concern, as does the Hague Convention on international child abduction, which all of Canada's jurisdictions are a signatory to.

I have two questions for you in relation to this, particularly relating to the children. I'd like you to keep in mind the primary concern, which I think should be children, even in relation to these particular charges.

The first is a parent exemption and how you would word a parent exemption to ensure that it was left more to a civil court, except in particular cases that are nefarious and very difficult to deal with. The second is the chance of return, especially relating to a mandatory minimum sentence of some 10 years, for instance, or five years, as the case may be, depending on what the committee ultimately decides.

What is the chance of returning a child, if indeed somebody is faced with serious time in jail? Do you think that would be part of the equation, or should it be?

You raise an interesting question on the number of kidnappings. The majority of those, as I think you inferred, would arise out of domestic relations. But in some cases they're rather benign—if you can use that word on a kidnapping—where the parent takes the child from Alberta to Ontario and goes into hiding. There are the other cases where—and I think there's a couple current on this—the child is taken to Iran and the Iranian government is not part of the Hague Convention and there's no way that you can legally get the child back. I don't know if there's any solution to that.

On cases where the Hague Convention does apply, you raise another interesting question that the country dealing with possession of the child looks to see the 10-year minimum that this person faces—and let us suppose it's a mother who is well-meaning but misdirected on taking the child out of the jurisdiction—and I think a judge might have difficulty. In our jurisprudence we've taken the position, on returning criminals charged with murder to the United States, that we will not extradite unless we get assurance that there will not be an execution. What you raise is a very difficult question. When the child is in a non-Hague recognized state, I don't know what you can do.

On the second question, the severity of the sentence would, I think, play a part in the possession state deciding whether or not to return the child.

Would it be possible to encourage, in the sentencing, some form of direct consideration if the child is returned unharmed?

Also, I just wanted to point out that in 2010—the stats I quoted were 1985—the actual total amount of kidnappings and abductions based on the new stats, which are, quite frankly, much better than the old 1985 stats, are almost 4,900 compared to somewhere in the neighbourhood of 1,327 in 1985. The amount has substantially increased. But I would like to hear your comments relating to the other issue, specifically relating to whether or not you could see some amendment in there, in sentencing, to encourage the return of the child unharmed and whether or not that should be a consideration.

I think it merits consideration because family kidnapping and kidnapping for ransom are two different things. In kidnapping for ransom, if the child is returned unharmed it could be a mitigating factor. In a family situation, it's unlikely that the parent would harm the child after kidnapping them. He or she is kidnapping, ostensibly, for love and affection or for revenge against the other spouse. In the case of—let's call it a commercial kidnapping—the return of the child unharmed is a very useful suggestion. It's an inducement to someone who may regret what he's done, and not wanting to cover his tracks by murdering the child, will return the child.